Liberties are right; approval not required

July 7, 2003

By Tibor Machan

It is always the burden of principled men and women to defend the liberty of some who aren’t the paragons of virtue, certainly not of ordinary morality. While there may be nothing amiss with sodomy — intimacy between people of the same sex — lots of folks think there is. Among these seem to be many legislators across this country — 13 states have laws banning sodomy — and perhaps some folks on the U.S. Supreme Court.
In any case, what certain influential people have been arguing is that if sodomy may not be outlawed in the United States, then surely neither may be bigamy, prostitution, incest and other widely condemned conduct that involves only consenting adults.
Now there is a very serious distinction that needs to be kept in mind in discussing these matters. The best way to show it is to note that the First Amendment gives legal protection to everyone’s right to free speech without in the slightest condoning everything everyone says who is enjoying that protection. The protection given to our right to do something does not in the slightest imply approval of how that right is exercised.
The idea behind rights is simply that individuals get to be their own executives, sovereign agents, and do not have to submit to the dictates of others, including the majority in their states or countries. The idea is not that every which way these rights are exercised must be correct and meet with moral approval, quite the contrary. Because everyone must make sure to live a morally upright life, everyone must be left alone to decide how to act. And this, of course, runs the obvious risk that some will act badly, whatever acting badly comes to.
But let’s return to the slippery slope some Senators and even Supreme Court justices have suggested would plague our legal system if sodomy is not banned. And here I will simply bite the bullet.
Yes, indeed, if everyone is free to engage in consensual homosexual conduct, everyone must also be free to engage in any other type of consensual sexual conduct. The only exception to this principle is when indeed what purports to be consensual sexual conduct turns out not to be consensual at all but has an impact on third parties who clearly didn’t consent.
Consider incest. If it is true that if unprotected incestuous sex will very likely produce defective offspring, then this kind of conduct is in principle different from sodomy or any other kind of consensual sex where no innocent third parties are affected. This, then, isn’t a slippery slope case at all.
What about bigamy? Well, if marriage is in fact the union of two people in an exclusive romantic sexual bond, then bigamy is simply fraud, since the parties to bigamy are only pretending to be married. But if bigamy, or polygamy, is some kind of consensually established romantic-sexual union among several people, then since no third parties’ rights are being violated, the slippery slope from sodomy does apply and so much the better for it. There should be no prohibition of such unions, even if it were true that they are immoral.
So, of course, the principle of liberty for all means liberty to do whatever does not violate anyone’s rights. So be it, then, if we are going to be serious about this ideal of a free society. That people may engage in misbehavior under this kind of system is just the price we have to pay. But no other system promises to be so just and so prosperous as this one, so the risks are not only worth it but there is simply no way to avoid them.
Appointing a bunch of czars to dictate to us the right way to act simply gives those czars the unchecked power to misbehave in spades and does nothing to wipe bad conduct from our midst.

Tibor Machan advises Freedom Communications, parent company of this newspaper. E-mail him at Machan@chapman.edu